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WishingWell WebHosting Pty. Ltd. (ACN 148 866 362) as Trustee for WishingWell WebHosting Trust (ABN 27 068 557 617), (referred hereinafter as 'WishingWell WebHosting', 'our', 'we' and 'us') is a web hosting and domain management business. All accounts on our web servers, including single-domain, reseller and resold accounts, are subject to the terms and conditions described in this document.

WishingWell WebHosting agrees to furnish services to you the “Client", subject to the following Terms of Service (TOS). Under the terms of this agreement, use of WishingWell WebHosting Services constitutes that you have read, understand, accept and agree to the WishingWell WebHosting (TOS) including the WishingWell WebHosting Acceptable Use Policy (AUP) annexed to this agreement (Annex A). In addition to this TOS agreement, use of WishingWell WebHosting Services constitutes that you have read, understand, accept and agree to the WishingWell WebHosting Service Level Agreement (SLA) and Privacy Policy posted at http://www.wishingwellhosting.com.au/terms-of-service. The TOS, AUP, SLA and Privacy Policy may be changed from time to time at the discretion of the WishingWell WebHosting. The Client understands that changes to the TOS, AUP, SLA and Privacy Policy by WishingWell WebHosting shall not be grounds for early contract termination or non-payment by the Client.

1. 1.Term
   
   

Ongoing until 60 days written notice is given by either of the parties.

1. 2.Cancellation
   
   
   1. 1.As a policy, we do not offer credits or refunds for hosting time already paid for unless your account is covered by our 30-day money back guarantee, or as required by law.
   2. 2.All outstanding balances must be paid in full at time of cancellation. Cancellation does not void any owed amounts to WishingWell WebHosting.
   3. 3.If we do not receive payment from you and cannot get in contact with you then your account will be suspended 2 days after the invoice due date. If we still cannot get in contact with you, your account and all your data will be removed from our servers 2 weeks after your invoice due date. We will not be held liable for lost data due to account termination.
   4. 4.Once the minimum contract period is over, or your service is on a month-to-month plan, your service will continue to renew automatically, and you will continue to be charged for the service, until such time as you or we cancel the service by giving 60 days’ written notice.
      Once your defined minimum service period has been met, your service will automatically operate on a month to month plan by default unless a new agreement has been entered into. A month to month plan begins upon the invoice issue date 3 weeks before the monthly billing cycle commences.
      A 60-day notice period is required to terminate services in which it takes effect when all previous commitments have been fulfilled.
      By default, your minimum commitment period is on a month to month basis unless otherwise specified in your agreement.

   5. All disputes will be dealt with strictly in the Victoria legal system unless otherwise stated in writing.

 

3. Money Back Guarantee

1. 1.The 30-day period during which you can request a refund of any money paid to us for hosting services starts from the day your hosting account is activated on our servers. Your account may be terminated immediately following your request. The money back guarantee only applies to shared web hosting accounts and virtual dedicated servers, this guarantee is strictly for new customers only.
   1. 2.Customised solutions are non-refundable inclusive of any establishment costs and fees paid in advance.
   2. 3.All domain names are non-refundable. If you have purchased a domain name and web hosting account from us and request a refund within the 30-day time period, we will only refund the web hosting portion of the fees that you paid. Your domain name will remain active in our account and it will still be under your control until it expires. If a domain name is provided free with a web hosting account that you have paid for as a part of a special promotion, we will deduct the retail value of your domain purchase from the refund amount.

4. Fees

1. 1.WishingWell WebHosting does not extend credit to Clients. All services must be paid foradvance of service delivery.
   1. 2.Monthly fees and charges for extra metered services are automatically billed to your account. The Client is responsible for monitoring transfer, bandwidth and space utilisation, and other metered services.
   2. 3.In order to prevent service interruption in the event that metered utilisation exceeds pre-paid service level Clients must keep a valid credit card on file with WishingWell WebHosting. Credit card information can be updated via your control panel.
   3. 4.Clients paying by credit card are charged the first business day prior to their account due date, allowing a minimum grace period of 48 hours after the first charge attempt before their service is interrupted. If a charge attempt is denied, there will be a declined credit card fee of $25 for each unsuccessful attempt. It is the responsibility of the Client to maintain current billing information to prevent these fees. If a successful charge cannot be made within 48hrs following the due date (6am), service will be suspended pending Client response. Clients may reactivate their accounts within 14 business days following the due date after which the Clients account will be permanently terminated and all files deleted from our servers. We will not be held liable for lost data due to account termination.
   4. 5.Clients paying by bank transfer must have all dues submitted prior to account due dates. All payments must be identifiable by WishingWell WebHosting. Please include your full invoice ID in the description of the payment.
   5. 6.Invoices will be sent 14 days before their due date. A reminder notice will be sent 7 days prior to due date.
   6. 7.Should the account remain unpaid by the due date a first overdue notice will be sent the morning after the due date (6am) indicating that should the account not be paid within 48hrs the account will be suspended.
   7. 8.Overdue accounts automatically attract a late fee of $25.
   8. 9.In the event of domain and hosting expiry, the domain and hosting will be automatically renewed if there is no 60 days written cancellation notice.
   9. 10.At 6am, 48hrs after the invoice due date, should the account remain unpaid a second overdue notice will be forwarded to the Client announcing that the account is being suspended after which the user will not have access to the site files until outstanding fees are paid in full.
      1. 11.If the Client has not fulfilled its dues to WishingWell WebHosting, the Service will be permanently terminated after 14 days of the initial due date after which all account files will automatically be deleted from our servers. All fees described above must be paid in addition to the cost of services ordered to establish or maintain a Client account. We will not be held liable for lost data due to account termination.
      2. 12.WishingWell WebHosting does not issue refunds or credits except as explicitly specified within this Terms of Service.
      3. 13.For the purpose of billing, each account on our website is a separate billing account. If any of the services under the one billing account are unpaid and overdue, WishingWell WebHosting reserves the right to disable all services under that billing account, regardless of their paid status, until all money owed is collected.
      4. 14.All monetary transactions are in Australian dollars unless otherwise stated. Additional features can be added at any time. WishingWell WebHosting reserves the right to change prices at any time.

5. Adherence to Acceptable Use Policy

1. 1.The Client agrees not to allow WishingWell WebHosting equipment and services to be used for activities specifically prohibited by the WishingWell WebHosting AUP, Annex A to this agreement and postedhttp://www.wishingwellhosting.com.au/terms-of-service. It is the Client's responsibility to review this agreement prior to executing this contract. The AUP may be updated from time to time and it is the Client's responsibility to regularly check for updates.
   1. 2.Clients must not allow WishingWell WebHosting resources to be used for SPAM or Unsolicited Commercial Email (UCE), hosting of content advertised by UCE, perpetration of security breaches or hacking, network attacks, illegal activities, child pornography, fraudulent activity, Trademark or Copyright infringement, virus distribution, and like activities.
   2. 3.Client agrees to compensate WishingWell WebHosting for any expenses WishingWell WebHosting may incur resulting from Client's violation of the posted AUP, including any fines, fees, legal expenses, and labor for investigation and resolution. The cost of any investigations will be charged to the Client at AU$120 per hour during normal business hours. Emergency investigations are charged double-time at AU$240 / hour with a one hour minimum.
   3. 4.The Client is responsible for any activity conducted on their account, including unauthorized activity by hackers. This includes any AUP violations or bandwidth or transfer usage caused by hackers. WishingWell WebHosting will endeavour to assist the Client but WishingWell WebHosting is not responsible for protecting Clients from hackers and their actions and use of Client's account.
   4. 5.WishingWell WebHosting does not monitor Client content and activities but reserves the right to disable service or remove content pending investigation of possible AUP violations without first giving notice.
   5. 6.WishingWell WebHosting does not issue refunds for terminating service due to suspected AUP violations.

6.Ownership of Data, Software, Hardware and IP Addresses

All software, hardware and IP addresses provided by WishingWell WebHosting are leased to the Client and remain the property of WishingWell WebHosting and/or its suppliers. WishingWell WebHosting reserves the right to change any network infrastructure, software, hardware and IP addresses at its sole discretion.

The Client will provide and transmit to the system software, data and content to be uploaded to the servers and accessed by the general public via the Internet. Upon termination of this agreement, Client agrees to remove all uploaded software, data and content prior to the termination date of the contract. WishingWell WebHosting will not be responsible for providing access or copies of the software, data or content stored on the system after the final termination date.

7. Service Levels

1. 1.WishingWell WebHosting may interrupt service to perform maintenance. WishingWell WebHosting will use its best efforts to inform Client before interrupting service to ensure that access loss is minimized. In the event of software or equipment malfunction or failure, WishingWell WebHosting will provide its best efforts to repair the system as quickly as possible.
   1. 2.In the event that WishingWell WebHosting suspects that server security has been breached, WishingWell WebHosting reserves the right to disable the server and/or the account in order to facilitate investigation and recovery in coordination with the Client.
   2. 3.The Client agrees that WishingWell WebHosting shall not be responsible for any service interruptions.

For more information on WishingWell WebHosting's Service Level Agreement, please see www.wishingwellhosting.com.au/service-agreement

8. Disk Usage and Backup

1. 1.The disk space provided by WishingWell WebHosting on its Personal and Business Hosting Plans are to be used solely for web serving purposes. All files must be either used by a script or linked by web page, pages that are accessible by the web site visitors.
   1. 2.WishingWell WebHosting strictly forbids the use of the space offered by its Personal and Business Hosting Plans as an online file storage / backup space. Therefore, files not directly used by Client's web site must not be uploaded to the space provided by WishingWell WebHosting. WishingWell WebHosting shall be the sole arbiter as to what constitutes a violation to this term.
   2. 3.The following scripts are banned from the server because of Poor programming; Consume too much server resources which degrade performance; Security issues:

I.All Proxy Scripts and Servers are banned

II.All IRC related software

A Zero Tolerance attitude will be taken and enforced against any occurrences of these scripts

1. 1.Should services be required that are not allowed in point 8A and 8B, the Client may request a Custom Hosting Plan to be designed for their specific needs.
   1. 2.Where a backup of data is performed by WishingWell WebHosting, no files larger than 2MB will be backed up.

9. Limitation of Liability, Indemnification

1. 1.Upon the discovery of facts which reasonably indicate that WishingWell WebHosting has breached the terms of this agreement or otherwise failed to perform its obligations under this Agreement, been negligent, or otherwise breached legal duty, the Client shall promptly notify WishingWell WebHosting of such facts and follow up any such verbal notification with a written notice within 30 days of such discovery. The failure to give the foregoing notices shall constitute an irrevocable waiver of all claims and causes of action. The Client must commence any legal action against WishingWell WebHosting with respect to this Agreement within 12 months after the incident giving rise to the claim or cause of action, regardless of when the incident is discovered. If proper notification is given to WishingWell WebHosting as requested by the Client anytime during the twelve (12) month period following such notification, WishingWell WebHosting shall at its sole discretion and option (i) revise or repeat free of charge the service affected by the failure of performance, negligence or breach, or, (ii) terminate this Agreement and pay Client for all incidents, problems, and/or failures up to a maximum of all sums paid to WishingWell WebHosting for service fees during the identified period. Payment will be made via company cheque from WishingWell WebHosting. The remedies set forth in this paragraph are the Client's sole and exclusive remedies should WishingWell WebHosting breach the above express warranty or otherwise fail to perform its obligation under this Agreement, be negligent or in breach of legal duty.
   1. 2.The parties acknowledge and agree that WishingWell WebHosting shall not be held liable for any consequential damages, including without limitation loss of use or loss of profits, incurred by the Client, the Client's Client or Client or its subsidiaries or successors, regardless of whether such damages are sustained based upon an alleged breach of contract, negligent act, or omission.
   2. 3.WishingWell WebHosting is not responsible for data or content maintained and distributed by WishingWell WebHosting facilities. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND CLIENT'S USE OF THE SERVICES IS AT ITS OWN RISK. WISHINGWELL WEBHOSTING DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WISHINGWELL WEBHOSTING DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

 

10. Miscellaneous

1. 1.The TOS agreement and its Annex A (AUP), SLA and Privacy Policy contain the sole and entire agreement of the parties with respect to the services to be provided by WishingWell WebHosting, and any and all prior or contemporaneous communications, negotiations, commitments, and understandings related thereto are hereby merged herein.
   1. 2.WishingWell WebHosting reserves the right to amend or otherwise change this agreement by publishing the updated service agreement on the WishingWell WebHosting Web sitehttp://www.wishingwellhosting.com.au/terms-of-service Client may reject the revised agreement and cancel service with 30 days written notice if the amended terms are not acceptable to the Client.
   2. 3.This Agreement shall be construed and enforced in accordance with the laws of the State of New South Wales, Australia.
   3. 4.All written communications shall be directed to the Client using the contact information provided to WishingWell WebHosting at the time of order unless otherwise instructed in writing by Client.

Client has reviewed the current Annex A. - Acceptable Use Policy, Service Level Agreement, Privacy Policy, and this Terms of Service and the Client and WishingWell WebHosting hereby agree by making use of the WishingWell WebHosting service.

Revision 1.1 – 8^th May 2011

Annex. A. – WishingWell WebHosting Acceptable Use Policy

By using our web hosting services, you agree to comply with this Policy. You are expected to use the Internet with respect, courtesy, and responsibility, giving due regard to the rights of other Internet users. We expect you to have a basic knowledge of how the Internet functions, the types of uses, which are generally acceptable, and the types of uses, which are to be avoided. Common sense is the best guide as to what is considered acceptable use. The following are unacceptable uses:

Illegality in any form, including but not limited to activities such as unauthorized distribution or copying of copyrighted software, violation of Australia's export restrictions, harassment, fraud, trafficking in obscene material, drug dealing, and other illegal activities.

Interpretation

The provisions of this Policy are intended as guidelines and are not meant to be exhaustive. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this Policy, is prohibited. WishingWell WebHosting reserves the right at all times to prohibit activities that damage its commercial reputation and goodwill.

Compliance with Law

Client shall not post, transmit, re-transmit or store material on or through any of Services or Products which, in the sole judgment of the WishingWell WebHosting (i) is in violation of any local, state, federal or international law or regulation, (ii) threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by the Client. The Client shall be responsible for determining what laws or regulations are applicable to its use of the Services and Products.

WishingWell WebHosting will be the sole arbiters as to what constitutes a violation of this provision, provided that all such determinations shall be made reasonably in good faith based on applicable law, regulation and the accepted norms of the Internet community.

Client Security Obligation

Each Client must use reasonable care in keeping each script, application, server or network devices attached to or hosted by WishingWell WebHosting's infrastructure up-to-date and patched with the latest security updates. Failure to use reasonable care to protect your applications and/or server may result in a security compromise by outside sources. WishingWell WebHosting is not responsible for the Client application/server level security. A compromised application or server creating network interference will result in immediate Client notification and will be suspended/disconnected from the network immediately so as to not directly affect other Clients. No service credits will be issued for outages resulting from disconnection due directly to breached security. The Client is solely responsible for any breaches of security affecting the applications or servers under Client control. If a Client intentionally creates a security breach or is found to have neglected the updating of software security updates, the cost to resolve any damage to Client's application or server or other servers will be charged directly to the Client. The labour used to resolve such damage is categorized as emergency security breach recovery and is currently charged at $600 AUD per hour. WishingWell WebHosting shall be the sole arbiter as to what constitutes the responsibility of a security breach.

System and Network Security

Violations of system or network security are strictly prohibited and may result in criminal and civil liability. WishingWell WebHosting investigates all incidents involving such violations and will cooperate with law enforcement if a criminal violation is suspected.

Examples of system or network security violations include, without limitation, the following:

1. 1.Introduction of malicious programs into the network or server (example: viruses, worms, Trojan Horses and other executables intended to inflict harm).
   1. 2.Effecting security breaches or disruptions of Internet communication and/or connectivity. Security breaches include, but are not limited to, accessing data of which the Client is not an intended recipient or logging into a server or account that the Client is not expressly authorized to access. For purposes of this section, "disruption" includes, but is not limited to port scans, flood pings, email-bombing, packet spoofing, IP spoofing and forged routing information.
   2. 3.Executing any form of network activity that will intercept data not intended for the Client.
   3. 4.Circumventing user authentication or security of any host, network or account.
   4. 5.Interfering with or denying service to any user other than the Client's host (example: denial of service attack or distributed denial of service attack).
   5. 6.Using any program script/command, or sending messages of any kind, designed to interfere with or to disable, a user's terminal session, via any means, locally or via the Internet.
   6. 7.Network interference by any Clients that may cause or is currently causing network interference with another Client will be suspended/disconnected immediately. No service credits will be issued to Clients suspended/disconnected for network violations.

Misuse of System Resources on Shared Hosting Service

It is a violation for anyone to post information or to include programs on the shared hosting service provided through the WishingWell WebHosting services which consume excessive bandwidth or CPU time. Background processes, including, but not limited to: ircbot, bnc, proxy, email sender, daemons, are strictly prohibited. WishingWell WebHosting shall be the sole arbiter as to what constitutes a violation to this term.

Disk Space Usage

 

The space provided on shared hosting servers are to be used strictly for web hosting purposes. We expressly prohibit the use of the shared hosting space for backup or file storage purposes. All shared hosting accounts are limited to a maximum of 50,000 inodes regardless of the space used. Each web page, email, image counts as 1 inode. Accounts with 50,000 inodes or more will be excluded from our backup system. Files that are larger than 2MB will be excluded from our backup system. Clients with more files are advised to organise a separate backup system.

Internet Etiquette

Each Client is expected to execute reasonable Internet etiquette (Netiquette). The Client will comply with the rules appropriate to any network to which WishingWell WebHosting may provide access. The Client should not post, transmit, or permit Internet access to information the Client desires to keep confidential. The Client is not permitted to post any material that is illegal, libellous, and tortuous, indecently depicts children or is likely to result in retaliation against WishingWell WebHosting by offended users. WishingWell WebHosting reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.

Email Policy

Mass Mailings. WishingWell WebHosting has a zero-stance policy on SPAM, Junk E-mail or UCE. Spam, Junk-mail and UCE are defined as: the sending of the same, or substantially similar, unsolicited electronic mail messages, whether commercial or not, to more than one recipient. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. UCE also includes e-mail with forged headers, compromised mail server relays, and false contact information. This prohibition extends to the sending of unsolicited mass mailings from another service, which in any way implicates the use of WishingWell WebHosting's services whether or not the message actually originated from our network.

Mailing Lists: WishingWell WebHosting's mass mailing rules also apply to mailing lists, list servs, or mailing services you may contract with. The policy is stated as follows: An acceptable mailing list will be focused at a targeted audience that has voluntarily signed up for your e-mail information or that has made their e-mail address available for distribution of information from you. The list must also allow for automatic removal by all end Clients with non-distribution in the future.

If your actions have caused WishingWell WebHosting's mail servers or WishingWell WebHosting's IP address ranges to be placed on blackhole lists and other mail filtering software systems used by companies on the internet, you will be assessed a $1000 charge to your account and $600 per hour for administrative charges incurred to remove and protect mail servers and IP ranges.

Use of Email Accounts. WishingWell WebHosting provides an allocated number of email accounts to its shared hosting Clients. This facility should only be used for Client's direct staff and/or families. WishingWell WebHosting specifically prohibits the use of our shared hosting's email facility to provide email service, whether it is free or fee based to the general public. For example, you cannot provide free email service such as Hotmail based on our shared hosting email facility.

Child Pornography

WishingWell WebHosting will cooperate fully with any criminal investigation into a Client's violation of the Australian Child Protection Act of 1999. Clients are ultimately responsible for the actions of their clients over WishingWell WebHosting's servers and will be liable for illegal material posted by their clients.

The USA's Child Protection Act of 1984 holds that Child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.

Copyright Infringement

WishingWell WebHosting's infrastructure including network, leased hardware, co-location services, and other hardware located in the facility may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of Australian, International or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.

Creative, utilizing, or distributing unauthorized copies of software are a violation of federal and state law. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. WishingWell WebHosting will cooperate with all law enforcement agencies in relation to alleged copyright infringement housed in our data centers / servers.

Consequences of Violation

When WishingWell WebHosting becomes aware of an alleged violation of its Acceptable Use Policy, WishingWell WebHosting will initiate an investigation. During the investigation WishingWell WebHosting may restrict Client's access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, WishingWell WebHosting may, at its sole discretion, restrict, suspend, or terminate Client's account and/or pursue other civil remedies. If such violation is a criminal offense, WishingWell WebHosting will notify the appropriate law enforcement department of such violation.

WishingWell WebHosting does not issue service credits for any outages incurred through service disablement resulting from Policy violations.

Reporting Abuse

Any party seeking to report any violations of WishingWell WebHosting's policy may contact us via  .